MOSH Field Operations Manual Revised 2/2013

Department of Labor, Licensing and Regulation, Division of Labor and Industry

MOSH Field Operations Manual (FOM)

MOSH Field Operations Manual

Table of Contents

Chapter I - General Responsibilities and Administrative Procedures

A. Assistant Commissioner for MOSH I-1

1. General I-1

2. Responsibilities I-1

3. Specific I-1

B. Supervisor of CO/IHI-2

1. General I-2

2. ResponsibilitiesI-2

3. CommunicationI-3

C. Maryland Occupational Safety and Health Compliance Officer/Industrial Hygienist (CO/IH) I-3

1. Personal Conduct and ActivitiesI-3

2. ResponsibilitiesI-4

3. Subpoenas Served on CO/IH I-4

4. Testifying in HearingsI-5

5. Release of Inspection Records I-5

6. Disposition of Inspection Records I-5

7. Correspondence with the Public I-5

8. Inquiries I-6

Chapter II. Compliance Inspection and Investigation Assignments

A. Program PlanningII-1

1. Purpose II-1

2. Primary ConsiderationII-1

B. Inspection/Investigation TypesII-1

1. UnprogrammedII-1

2. Unprogrammed RelatedII-1

3. ProgrammedII-1

4. Programmed RelatedII-1

C. ScopeII-1

1. ComprehensiveII-1

2. PartialII-1

D. Inspection Selection CriteriaII-2

1. General RequirementsII-2

2. Employer ContactsII-2

E. Inspection PrioritiesII-3

1. Order of PriorityII-3

2. Dedication of ResourcesII-3

F. Inspection SchedulingII-3

1. Unprogrammed InspectionsII-3

2. Programmed InspectionsII-6

3. Special Emphasis ProgramsII-7

Chapter III. General Inspection Procedures

A. CO/IH’s ResponsibilitiesIII-1

B. PreparationIII-1

1. General PlanningIII-1

2. Preinspection PlanningIII-1

3. Inspection Materials and EquipmentIII-2

4. Expert AssistanceIII-2

5. Safety and Health Rules of the EmployerIII-2

6. Immunization and Other Special Entrance RequirementsIII-3

7. Personal Security ClearanceIII-3

C. Advance Notice of InspectionsIII-3

1. PolicyIII-3

2. ProceduresIII-5

D. Conduct of the InspectionIII-6

1. Entry of the WorkplaceIII-6

2. Employee ParticipationIII-14

3. Opening ConferenceIII-14

4. Walk Around RepresentativesIII-20

5. Special SituationsIII-21

6. Examination of Record and Posting RequirementsIII-23

7. Walk Around InspectionIII-25

8. Closing ConferenceIII-37

E. AbatementIII-43

1. PeriodIII-43

2. Reasonable Abatement DateIII-43

3. Abatement Period Exceeding 30 Calendar DaysIII-44

4. Verification of AbatementIII-44

5. Effect of Contest Upon Abatement PeriodIII-45

6. Feasible Administrative, Work Practice and Engineering ControlsIII-46

7. Long-term Abatement Date for Implementation of feasible Engineering

ControlsIII-47

8. Multi-step AbatementIII-48

9. Petitions for Modification of Abatement Date (PMA)III-50

F. Employer Abatement AssistanceIII-53

1. PolicyIII-53

2. Type of AssistanceIII-53

3. DisclaimersIII-53

4. ProceduresIII-53

G. Informal ConferencesIII-53

1. GeneralIII-54

2. ProceduresIII-54

H. Follow-up InspectionsIII-56

1. Inspection ProceduresIII-56

2. Failure to AbateIII-56

3. ReportsIII-57

4. Follow-up FilesIII-57

I. Conduct of Monitoring InspectionIII-57

1. GeneralIII-57

2. ProceduresIII-57

3. AssignmentIII-57

Chapter IV. Violations

A. Basis of ViolationsIV-1

1. Standards and RegulationsIV-1

2. General Duty RequirementIV-3

3. Employee ExposureIV-11

4. Regulatory RequirementsIV-13

B. Types of ViolationsIV-13

1. Serious ViolationsIV-13

2. Other-than-Serious ViolationsIV-18

3. Willful ViolationsIV-18

4. Criminal/Willful ViolationsIV-19

5. Repeated ViolationsIV-21

6. De Minimis ViolationsIV-22

C. Health Standard ViolationsIV-23

1. GeneralIV-23

2. Citation of Ventilation StandardsIV-23

3. Violations of the Noise StandardIV-24

4. Violations of the Respirator StandardIV-26

5. Violations of Air Contaminant Standards (29 CFR 1910.1000 Series)IV-27

6. Classification of Violations of Air Contaminant StandardsIV-28

7. Guidelines for Issuing Citations of Air Contaminant ViolationsIV-29

8. Citing Improper Personal Hygiene PracticesIV-30

9. Classification of Violations for the New Health StandardsIV-31

Chapter V. Citations Procedures

A. Pre-Citation ConsultationV-1

1. GeneralV-1

2. ProceduresV-1

B. Writing CitationsV-1

1. GeneralV-1

2. Specific InstructionsV-2

C. Grouping and Combining of ViolationsV-11

1. DefinitionsV-11

2. CombiningV-12

3. GroupingV-12

4. General Duty Clause ViolationsV-13

5. Serious ViolationsV-13

6. Egregious ViolationsV-13

D. Employer/Employee ResponsibilitiesV-13

1. Section S-104(b)(2) of the ActV-13

2. Employee Refusal to ComplyV-13

E. Affirmative DefensesV-14

1. DefinitionV-14

2. Burden of ProofV-14

3. ExplanationsV-14

F. Issuing Citations - Special CircumstancesV-15

1. Follow-up InspectionsV-15

2. Multi-Employer WorksitesV-15

G. Amending or Withdrawing Citation and Notification of Penalty in Part or

in its EntiretyV-16

1. Citation Revision JustifiedV-16

2. Citation Revision Not JustifiedV-17

3. Procedures for Amending or Withdrawing CitationsV-17

H. Settlement of CasesV-17

1. GeneralV-17

2. Pre-Contest Settlement (Informal Settlement Agreement)V-18

3. Post-Contest Settlement (Formal Settlement Agreement)V-19

Chapter VI. Penalties

A. Civil Penalties VI-1

1. Type of Violation as a Factor VI-1

2. Serious and Other-than-Serious Violations VI-1

3. Penalty Factors VI-1

B. Penalty Calculation Considerations VI-1

1. Severity Factor VI-1

2. Probability Assessment - WHEN SAMPLES ARE NOT TAKEN VI-2

3. Probability Assessment - WHEN SAMPLES ARE TAKEN VI-2

4. Other Factors VI-3

5. Gravity Rate VI-3

6. Gravity Based Penalty VI-3

C. Penalty Adjustment Factors VI-3

1. Good Faith Adjustment VI-4

2. Good Faith Rating VI-5

3. History VI-5

4. Size VI-5

5. Actual Harm VI-5

6. Egregious Violations VI-6

D. Related Classifications VI-6

1. Failure to Correct VI-6

2. Repeated Violations VI-7

3. Willful Violations VI-8

4. Violation of Regulatory Requirements VI-8

E. Criminal Penalties VI-10

Appendix: Penalty Calculation Considerations VI-10

Chapter VII. Imminent Danger

A. General VII-1

1. Definition VII-1

2. Requirements VII-1

B. Preinspection Procedures for Handling Imminent Danger Situations VII-1

1. When an Allegation of Imminent Danger is Received by the Field VII-1

2. Technical Considerations VII-2

3. Scheduling VII-2

C. Inspection VII-2

1. Scope VII-2

2. Procedures VII-2

3. Elimination of the Imminent Danger VII-3

4. Issuing Notice of Alleged Imminent Danger VII-4

5. Notice Prohibiting Use of Equipment VII-4

6. Report Following Issuance of Imminent Danger Notice or Notice Prohibiting Use of Equipment VII-4

D. Citations and Proposed Penalties VII-5

1. Citations and Penalties VII-5

2. Effect of Court Action VII-5

E. Follow-up Inspection for Imminent Danger VII-5

1. Court Action VII-5

2. No Court Action VII-5

3. Immediate Correction VII-5

F. Removal of Imminent Danger Notice VII-5

G. Follow-up Inspection for Notice Prohibiting Use of Equipment VII-5

H. Removal of Notice Prohibiting Use of Equipment VII-5

Chapter VIII. Accident Investigations

A. General VIII-1

B. Purpose VIII-1

C. Definitions VIII-1

1. Fatality VIII-1

2. Catastrophe VIII-1

3. Hospitalization VIII-1

D. Processing and Reporting of Accidents for Investigation VIII-1

E. Emergency Response Protocol VIII-2

1. Incident Command System VIII-2

2. Communication VIII-2

3. Incident Supervisor VIII-2

4. MOSH Principal Investigator VIII-3

5. MOSH Support Personnel VIII-3

6. CO/IH Duties VIII-3

F. Pre-Investigation Activities VIII-4

G. Equipment VIII-4

H. Investigative Procedures VIII-4

1. Define the Scope of the Investigation VIII-4

2. Assign/Select Principal Investigator VIII-5

3. Preliminary Briefing VIII-5

4. Accident Scene VIII-5

5. Conducting Investigative Interviews and Taking Statements VIII-6

I. Reports VIII-7

Chapter IX. Complaints and Referrals

A. Complaints IX-1

1. General IX-1

2. Definitions IX-1

3. Receiving Complaints IX-3

4. Evaluating Complaints IX-3

5. Information Needed for Complaint Evaluation IX-4

6. Responding to Complaints Alleging Imminent Danger ConditionsIX-5

7. Responding to Formal Complaints IX-5

8. Responding to Nonformal Complaints IX-5

9. Scope of Inspection IX-6

10. Procedures IX-7

B. Referrals IX-8

1. General IX-8

2. Definitions IX-8

3. Sources of Referrals IX-8

4. Referral Inspections IX-10

5. Procedures IX-10

Chapter X. Discrimination Complaints

A. General X-1

1. Scope X-1

2. Agency Policy X-1

3. Time Limitations X-1

4. Program Administration X-1

5. Responsibility of All MOSH PersonnelX-1

B. Administrative Procedure X-1

1. Filing of Complaint X-1

2. Initial Processing and Evaluation X-2

3. Full Investigation X-2

4. Report to the Assistant Commissioner/Authorized Representative X-2

5. Determination X-3

6. Closing a Case X-3

C. Investigation X-3

1. CO's Responsibility X-3

2. Focus of Investigation X-3

3. Interview of Complainant X-3

4. Full Investigation X-3

D. Final Investigative Report X-4

E. Timely Filing of a Complaint X-5

F. Settlement X-5

G. Withdrawal of Complaint X-6

H. Release of Investigation Information X-6

Chapter XI. Temporary Labor Camp Inspections

A. General XI-1

1. Background XI-1

2. Scope XI-1

3. Definitions XI-1

4. Applicability-of Standards XI-1

B. Scheduling XI-2

1. Lists XI-2

2. Inspections XI-2

3. Exemptions and Limitations XI-2

4. Accidents and Complaints XI-2

C. Enforcement of Temporary Labor Camp Standards XI-2

1. Choice of Standards XI-2

2. Citations for Violations of Standards XI-3

D. Inspection Procedures XI-3

1. Worker Occupied Housing XI-3

2. Primary Concern XI-4

3. Dimensions XI-4

E. Documentation for Migrant Housing Inspections XI-4

Chapter XII. Construction

A. General COIIH Responsibilities XII-1

B. Standards XII-1

1. Applicability XII-1

2. Enforcement XII-1

C. Employer Workplace XII-1

1. General XII-1

2. Administrative Convenience XII-1

D. Advance Notice XII-1

1. General XII-1

2. Authorized XII-1

E. Entry of the Workplace XII-2

1. Severe Weather Conditions XII-2

2. Right to Enter--Refusal to Permit Inspection XII-2

3. Opening Conference XII-2

4. Selecting Employer and Employee Representatives XII-3

F. Closing Conference XII-3

1. General XII-3

2. Contractor Names and Addresses XII-4

G. Citations and Penalties XII-4

1. Mailing XII-4

2. Where to Post Citations XII-4

Chapter XIII. Disclosure of Documents

A. Policy XIII-1

B. Procedure XIII-1

C. Exceptions to Procedure XIII-1

Chapter XIV. Voluntary Protection Programs

A. Purpose XIV-1

B. Scope XIV-1

C. Authority XIV-1

D. Roles and Responsibilities XIV-1

1. Commissioner XIV-1

2. VPP Coordinator XIV-1

E. VPP Application Process XIV-2

1. Review of Applications XIV-2

2. Decision to Conduct Pre-approval On-site Review XIV-2

3. Contents of Application XIV-2

F. On-site Evaluation XIV-7

1. Determination XIV-7

2. Review Team XIV-7

3. On-site Visit XIV-7

4. Preparation and Submittal of Findings XIV-7

5. Closing Conference XIV-8

G. Post-Approval Process XIV-8

H. Effect of VPP on Unprogramed Activity XIV-8

1. Complaints Filed Against a VPP Participant XIV-8

2. Accidents XIV-9

Chapter I - General Responsibilities and Administrative Procedures - MOSH Field Operations Manual - Maryland Occupational Safety and Health (MOSH)

A. Assistant Commissioner for MOSH.

1. General. It is the overall responsibility of the Assistant Commissioner for MOSH or his/her authorized representative (Assistant Commissioner/Authorized Representative) to carry out managerial, administrative and operational objectives within the MOSH Compliance Program. This includes administrative and technical support for the Maryland Occupational Safety and Health Compliance Officers and Industrial Hygienists (CO/IH). 

2. Responsibilities. The Assistant Commissioner/Authorized Representative shall carry out these responsibilities under the authority and direction of the Commissioner and follow current MOSH Instructions and Memoranda, where applicable, in performing administrative and operational duties. These duties may be subdelegated, as appropriate, to MOSH safety and/or health supervisors. The MOSH Field Operations Manual (FOM), augmented by MOSH Field Directives, provides guidance for the conduct of most compliance operations activities. Interpretation and clarification as well as additional guidance shall be obtained from or through the Commissioner or the Office of the Attorney General. 

3. Specific. In fulfilling the responsibilities as outlined in the preceding paragraph, the Assistant Commissioner/Authorized Representative has a wide range of more specific duties, including, but not limited to, the following: 

a. Ensuring that inspections are scheduled within the framework of the State Plan; 

b. Reviewing inspection reports from CO/IH and processing citations and notifications of proposed penalties, when appropriate; 

c. Recommending modification of citations, proposed penalties and abatement dates, when appropriate and when requested within the allowable time and in accordance with established procedures; 

d. Determining the validity of complaints and referrals and taking appropriate action, including investigation thereof; 

e. Initiating imminent danger and accident investigations; 

f. Arranging for the assistance of experts, as necessary, for inspections and investigations; 

g. Coordinating special emphasis programs as necessary to ensure the success of defined goals; 

h. Reviewing and acting on requests for modification of abatement date; 

i. Ensuring that informal conferences with employers and employees regarding inspections of their workplaces are held in accordance with the Code of Maryland Regulations, and reviewing and approving proposed informal settlements; 

j. Coordinating special enforcement problems (e.g., failures to abate, willful violations, refusals of entry, restraining orders, etc.) with the Office of the Attorney General; 

k. Initiating the debt collection process when a MOSH penalty becomes a final order, and coordinating collection activities with the Maryland Central Collection Unit when files are forwarded to that office; 

l. Coordinating review and monitoring of employer progress towards abatement of hazards and providing appropriate guidance as necessary; 

m. Developing, scheduling and/or executing formalized training to upgrade the knowledge and skills of CO/IH staff; 

n. Directing and coordinating the completion of IMIS information by all MOSH compliance personnel; 

o. Coordinating with the Office of the Attorney General on contested cases, including potential formal settlements; helping arrange for the assistance of expert or other witnesses; personally testifying, as appropriate, regarding the scheduling of inspections and the issuance of citations and proposed penalties; 

p. Directing field activities of enforcement personnel; 

q. Responding to requests for information pursuant to the Maryland Public Information Act (MPIA) in accordance with current guidelines; and 

r. Developing and implementing a comprehensive safety and health program for MOSH personnel, as appropriate.

B. Supervisor of CO/IH.

1. General. The MOSH Supervisor has overall management responsibility for all resources in an assigned area. 

2. Responsibilities. The MOSH Supervisor exercises responsibility and authority under the Assistant Commissioner/Authorized Representative. The following are among the specific duties of the MOSH Supervisor: 

a. Reviewing and assessing the work products of CO/IHs under supervision for technical adequacy, applying the policies and procedures in effect within the agency and accepting, amending, or rejecting them as appropriate; 

b. Evaluating the performance of each CO/IH and the programs under supervision; 

c. Ensuring that each CO/IH conducts himself or herself in a manner that conforms to recognized safety and health practices and limits any hazard exposure to prevent injury or adverse health effect. 

d. Advising, counseling, and instructing each CO/IH under supervision on MOSH policies and procedures and on administrative matters; 

e. Ensuring that CO/IH have available all report forms and handouts in sufficient quantity for use in inspections; 

f. Ensuring that necessary personal protective equipment is available for use and in serviceable condition; that test equipment required for inspections is properly calibrated and ready for use when needed; and that each CO/IH is trained in the field use of such equipment; 

g. Developing, scheduling and/or executing informal training to upgrade the knowledge and skills of CO/IH staff under supervision; 

h. Evaluating incoming complaints and referrals, establishing priorities among inspection categories, and scheduling programmed and unprogrammed inspections in accordance with MOSH procedures; 

i. Recommending and initiating work methods, organizational alignment, and the structure of work to achieve optimum utilization of available resources; 

j. Ensuring that inspection activities comply with appropriate directives; and 

k. Holding informal conferences with employers and employees regarding inspections of their workplaces and recommending informal settlements of appropriate cases. 

3. Communication. Effective and efficient communication is an important element of a MOSH Supervisor's responsibility. They shall ensure that the views and expressions of the program as a whole are not compromised.

C. Maryland Occupational Safety and Health Compliance Officer/Industrial Hygienist (CO/IH).

1. Personal Conduct and Activities. All CO/IH must adhere to the rules of conduct prescribed for State employees in general. They must also adhere to certain rules, regulations and requirements that apply particularly to them as inspectors. The following sections set forth certain regulations and requirements which are particularly concerned with the conduct of CO/IH. 

a. Courtesy to the Public. The Division of Labor and Industry emphasizes that the proper and courteous discharge of duties and responsibilities by staff is essential to the enforcement and administration of the MOSH Act (the Act). The CO/IH is the primary representative of the Department of Labor, Licensing and Regulation and the Division of Labor and Industry in public relations. The ultimate success of the compliance program depends largely upon the CO/IH's knowledge and understanding of the Act and regulations, as well as upon their courtesy and tact in dealing with employers and employees. CO/IHs represent State government and must at all times conduct themselves in such a manner as to reflect that responsibility. They must never allow themselves to indulge in conduct or statements unbecoming their position, even when such conduct or statements are invited or incited by those with whom they are dealing. 

b. Acceptance of Gratuities. It is illegal for a State official or an employee to solicit any gift. It shall be considered unethical and is illegal for any State official or employee to accept, seek, solicit, or take directly or indirectly, any gift or benefit of more than insignificant economic value, including money, any service, gratuity, fee, property, loan, promise or anything else of more than insignificant economic value from or on behalf of any individual or entity who is doing or is seeking to do business of any kind with the State or whose activities are regulated or controlled in any way by the State. No gift shall be accepted under circumstances from which the official or employee could reasonably have inferred that the gift or benefit was intended to influence or gives the appearance of influencing such official or employee in the performance of official duties and under circumstances from which it is reasonable to assume that the official or employee would be influenced in the performance of official duties. Additional guidance shall be provided by the Maryland Public Ethics Law. 

2. Responsibilities. The CO/IHs responsibilities are necessarily extensive. The primary responsibility is the conduct of effective inspections to determine whether employers are: (1) providing employment and a place of employment that are safe and healthful and free from each recognized hazard that is causing or likely to cause death or serious physical harm to the employee, and (2) complying with safety and health standards and regulations adopted by the Commissioner. The conduct of effective inspections requires identification, professional evaluation, and accurate reporting of safety and health conditions and practices. Inspections may vary considerably in scope and detail, depending upon the circumstances in each case. 

a. Preparation. Preparing for an inspection is an important part of a CO/IHs professional activity. Once an establishment has been assigned for inspection, the CO/IH shall review the types of conditions likely to be encountered, including the work processes, equipment and machinery involved, and the hazards likely to be associated with them. All available sources of information shall be used to bring about as complete a familiarity with the establishment as is practicable. The quality of the inspection will be judged by employer and employee alike based on the CO/IH's knowledge of, and familiarity with, the work done and the problems associated with it. 

b. First Impression. CO/IHs must be aware that a good first impression is important in creating an atmosphere of cooperation and is essential to the successful completion of the inspection. Such an impression can be created by careful planning. Dress shall be appropriate to the type of establishment to be inspected. Proper protective clothing and equipment shall be worn and company comportment rules scrupulously observed. A precise and respectful professionalism shall be displayed and the inspection conducted as efficiently as possible, without undue delay and with sensitivity to the needs and concerns of those involved. 

c. Concern for Safety and Health. During the walk around the CO/IH shall encourage dialogue and questions related to safety and health issues and shall offer suggestions and explanations as to how problems might be abated. The major goal of MOSH's inspections is to foster a mutual interest on the part of labor and management in eliminating or reducing workplace hazards. This involves building cooperation on the foundation of existing good safety and health practices, which practices shall be commended and promoted whenever possible. 

d. Balanced Approach. MOSH policy is to remain neutral in dealing with management and labor. The CO/IH is an agent of neither side but rather of MOSH and is, therefore, charged with ensuring that the employer provides a safe and healthful workplace. Bias or even the appearance of partiality toward one side or the other will lessen MOSH's ability to carry out this important legislative mandate. 

e. Thoroughness. The MOSH program will be judged at every step of the inspection by the actions of the CO/IH. The closing conference held with management and/or employee representatives shall be used as a means of reinforcing the agency's intent to be cooperative, helpful, and courteous in the conduct of its activity. The CO/IH shall explain the availability of other MOSH programs in addition to enforcement, such as Consultation, and Training and Education. 

3. Subpoenas Served on CO/IHs. If a CO/IH is served with a subpoena or request for deposition, the MOSH Supervisor shall be informed immediately and the matter shall be referred to the Assistant Commissioner/Authorized Representative, giving all pertinent information. The agency will evaluate all such requests to determine appropriate direction.

 

4. Testifying in Hearings. 

a. The CO/IH may be required to testify in hearings on behalf of the State. The CO/IH should keep this fact in mind when conducting an inspection and shall record pertinent observations. Reports must reflect conditions accurately. Any report which contains an element of the time of day must reflect the actual time the CO/IH was involved. If the CO/IH is called upon to testify, the report will be invaluable as a means for recalling actual conditions and reinforcing the facts. 

b. A hearing before an Administrative Law Judge, a hearing before the Commissioner, or judicial review in court may require the participation of the CO/IH whose reports led to the issuance of the contested citation(s). Such participation will normally consist of sworn testimony as to facts within the CO/IH's personal knowledge. The CO/IH shall avoid giving expert or opinion testimony unless specifically ordered to do so by the authority conducting the proceeding. 

c. In order to properly prepare for such participation, the CO/IH shall carefully review the entire case file. Particular attention shall be given to photographs and witness statements included in the case file. 

d. Courteous, professional deportment in any proceeding is of paramount importance. Disparagement of individuals or organizations is to be avoided. 

5. Release of Inspection Information. Portions of information obtained from inspections may be confidential and not releasable to persons outside of MOSH. Determinations of disclosable or nondisclosable information will be made based on criteria established in the Maryland Public Information Act (MPIA) and administered by the Office of the Assistant Commissioner. 

a. The CO/IH shall not discuss information connected with any case except as indicated elsewhere in this manual. Thus, for example, some case file information may be discussed with employer or employee representatives prior to citation issuance or during the closing conference or informal conferences. 

b. Any requests for information shall be directed in writing to the Office of the Assistant Commissioner. 

6. Disposition of Inspection Records. "Inspection records" are any records made by a CO/IH that concern, relate to, or are a part of any inspection or that concern, relate to, or are part of the performance of any official duty. Such original material and all copies shall be included in the case file. These records are the property of the State of Maryland and a part of the case file. Inspection records are not the property of the CO/IH and under no circumstances are they to be retained or used for any private purpose. Copies of documents, notes or other recorded information not necessary or pertinent or not suitable for inclusion in the case file shall, with the concurrence and permission of the MOSH Supervisor, be destroyed. 

7. Correspondence with the Public. A CO/IH normally shall not correspond with the public except as directed by the MOSH Supervisor. All formal correspondence shall be submitted to the MOSH Supervisor who will discuss with and seek approval from the Assistant Commissioner/Authorized Representative. Copies of all correspondence shall be maintained in the regional office files. This shall not be interpreted to mean that a CO/IH cannot answer questions regarding MOSH programs, including standard interpretations, if asked on an inspection or over the telephone. A CO/IH shall not attempt to answer questions which he or she does not have the ability to answer. 

8. Inquiries. The CO/IH will deal with inquiries in the following manner: 

a. Frequently during an inspection the CO/IH may be asked by an employer or its representative about the coverage or application of the Act. These questions usually will be such that the CO/IH may answer them by referring to applicable safety and health standards or other appropriate documents (e.g., the Act). Questions about which the CO/IH has any doubt shall be referred to the MOSH Supervisor. 

b. CO/IHs may be asked about the applicability of laws and programs administered by federal or by other State or local agencies. Under no circumstances shall the CO/IH attempt to advise such parties regarding laws not administered by MOSH. Instead, they shall be referred to the agency responsible for administering the law or program in question.

c. The MOSH public information policy regarding investigation of fatalities, catastrophes, other accidents, and/or complaints is to explain MOSH presence to the news media; that is, to say that "MOSH is investigating" if you know this to be so. Any further information shall be released by the Assistant Commissioner/Authorized Representative. It is not MOSH policy to provide a continuing flow of facts nor to issue periodic updates on the progress of any investigation.

Chapter II - Compliance Inspection and Investigation Assignments - MOSH Field Operations Manual - Maryland Occupational Safety and Health (MOSH)

A. Program Planning.

1. Purpose. Compliance programming provides general guidelines to the Assistant Commissioner/Authorized Representative and MOSH Supervisors in planning compliance operations and related activities and instructions for their implementation. 

2. Primary Consideration. The primary consideration in conducting compliance operations is the attainment of maximum effective inspection coverage. To achieve this goal, the guidelines in this chapter shall be used for scheduling compliance operations.

B. Inspection/Investigation Types.

1. Unprogrammed. Inspections in which alleged hazardous working conditions have been identified at a specific worksite are unprogrammed. This type of inspection responds to imminent dangers, fatalities/catastrophes, complaints, referrals, accidents, follow-ups and monitoring. 

2. Unprogrammed Related. Inspections of employers on multi-employer worksites whose operations are not directly related to the subject of the unprogrammed activity (e.g., a complaint, an accident or a referral). 

3. Programmed. Inspections of worksites which have been selected based upon objective or neutral selection criteria are programmed. The worksites are selected according to current MOSH Instructions or according to safety and health scheduling procedures for national or local emphasis or for other special programs. 

4. Programmed Related. Inspections of employers on multi-employer worksites whose activities were not included in the programmed assignment (e.g., a low injury rate employer at a worksite where programmed inspections are being conducted for all high injury rate employers). All high rate employers at the worksite shall normally be included in the programmed inspections.

C. Scope. Inspections, either programmed or unprogrammed, may fall into one of two categories depending on the scope of the inspection:

1. Comprehensive. A complete walk around inspection of the entire establishment with the possible exception of areas which are clearly low hazard areas. 

2. Partial. An inspection wherein the walk around was limited to certain areas, operations, conditions, or practices of the establishment and did not include all potentially hazardous areas. The reason for the limitation does not affect the classification of the inspection as partial.

a. A partial inspection may include, in addition to its principal focus, a review of injury and illness records, an assessment of the employer's safety and health program, including, but not limited to, fall protection, personal protective equipment and respiratory protection; and a brief walk around to survey, as deemed appropriate, those areas, conditions, operations, and practices that, based on the exercise of discretion and professional judgment, are believed to have a great hazard potential. 

b. The information gathered during this review and walk around shall be used to confirm or revise the determination made in accordance with the FOM as to whether the inspection's scope should be expanded.

D. Inspection Selection Criteria.

1. General Requirements. MOSH's priority system for conducting inspections is designed to distribute available MOSH resources as effectively and efficiently as possible to ensure that maximum feasible protection is provided to each working man and woman in this State.

a. Scheduling. The MOSH Supervisor shall ensure that inspections are scheduled within the framework of the priorities outlined in this chapter and that they are consistent with the objectives of the Agency. (See current MOSH Instructions for Congressional exemptions and limitations on MOSH inspection activity.) 

b. Effect of Contest. If an employer scheduled for inspection, at a site previously inspected, either programmed or unprogrammed, has contested a citation and/or a penalty received as a result of the previous inspection and the case is still pending, the following guidelines apply:

i. If the employer has contested the penalty only, the inspection shall be scheduled in accordance with the guidelines given below, that is, it shall be scheduled as though there were no contest.

ii. If the employer has contested the citation itself or any items thereon, then:

1) Unprogrammed inspections shall be scheduled in accordance with the guidelines given below. The scope of such an inspection shall normally be partial with the inspection limited to an investigation of the alleged hazards. All areas related to items under contest shall be excluded from the inspection unless a potential imminent danger is involved. If an imminent danger situation exists, the procedures relative to handling imminent dangers shall be followed.

2) Programmed inspections shall be carried over to the next cycle in accordance with the scheduling guidelines. Inspections may continue to be carried over, until the case is no longer pending. If the inspection is performed, all items under contest shall be excluded from the inspection unless a potential imminent danger is involved.

3) If the employer has contested a previously issued health citation, programmed safety inspections need not be carried over to the next cycle. The same is true for programmed health inspections when the employer has contested a previously issued safety citation.

2. Employer Contacts. Contacts for information initiated by employers or their representatives shall not trigger an inspection. Nor shall such employer inquiries protect them against regular inspections conducted pursuant to guidelines established by the agency. Further, if an employer or an employer representative indicates that an imminent danger exists or that a fatality or catastrophe has occurred, the MOSH Supervisor shall act in accordance with established MOSH procedures and notify MOSH Operations.

E. Inspection Priorities.

1. Order of Priority. Priority of accomplishment and assignment of staffing resources for inspection categories shall be as follows: 

Priority

Category

First

Imminent danger

Second

Fatality/catastrophe

Third

Serious complaints and referrals

Fourth

Accidents

Fifth

Other-than-serious complaints and referrals

Sixth

Follow-ups

Seventh

Programmed Inspections

2. Dedication of Resources. Unprogrammed inspections shall be scheduled prior to any programmed inspections for each geographical region. Every attempt shall be made to ensure that unprogrammed inspections assigned to a CO/IH are opened prior to any not yet scheduled programmed activity. To ensure efficient use of resources, or when MOSH objectives so dictate, programmed inspections occasionally may receive a higher priority than unprogrammed inspections.

F. Inspection Scheduling.

1. Unprogrammed Inspections. Those inspections conducted in response to allegations of hazardous conditions at a worksite are considered unprogrammed inspections.

a. Priorities. Unprogrammed inspections (excluding follow-ups and monitoring) shall normally be scheduled by the MOSH Supervisor with the following priorities and within the specified time:

i. Allegations of alleged imminent danger situations received and validated from any source, including referrals and complaints regardless of formality, shall be inspected the same day received, where possible, but not later than the employer’s next working day after receipt of the complaint.

ii. Fatalities/catastrophes, no later than 24 hours from notification;

iii. Timely reported incidents involving serious injuries or hazards of a serious nature, within 2 working days of assignment date;

iv. Formal serious complaints and CO/IH referrals, including referrals from other safety and health agencies, classified as serious, within 3 working days of assignment date;

v. Formal other-than-serious complaints, within 10 working days of assignment date;

vi. Nonformal serious complaints requiring an inspection, within 3 working days of assignment date;

vii. Nonformal other-than-serious complaints requiring an inspection, within 10 working days of assignment date;

viii. Accident investigations (not covered above), within 5 working days of assignment date;

b. Scope. Unprogrammed inspections of an establishment are normally partial inspections limited to the specific working conditions or practices forming the basis of the unprogrammed inspection. Depending upon available resources, the scope may be expanded under any of the following circumstances which shall be documented in the case file:

i. The establishment is listed on the current Regional Office safety or health inspection list.

ii. A substantially complete inspection of the establishment has not been conducted within the preceding 3 years for safety and 5 years for health.

iii. MOSH inspection records for the establishment indicate a history of significant violations. The allegations providing the basis for the unprogrammed inspection indicate the existence of potential hazards which can be identified by expanding the inspection.

iv. Any other legitimate reason as determined by the MOSH Supervisor.

NOTE: Any establishment or worksite covered under the Inspection Exemption through the Consultation Program, the Voluntary Protection Program or another similar qualifying program, normally shall not receive a comprehensive inspection unless the Assistant Commissioner/Authorized Representative for good reason decides otherwise.

c. Follow-up Inspections. In cases where the Assistant Commissioner/Authorized Representative decides that a follow-up inspection is necessary, it shall be conducted as promptly as possible. The seriousness and imminence of the original hazards or conditions requiring action shall be considered in assigning a priority to follow-up inspections.

i. Follow-up Inspection Priority. Follow-up inspections shall normally be scheduled within 10 working days following assignment and shall take priority over programmed inspections. The seriousness of the hazards requiring abatement shall determine the priority among follow-up inspections.

ii. Required Follow-up Inspections. Although resources do not permit follow-up inspections in all cases, follow-up inspections will normally be conducted in the following situations:

1) Willful, repeated, or high gravity serious citations;

2) Failure to abate notifications;

3) Citations related to an imminent danger situation;

4) When the employer fails to respond or to respond satisfactorily to a request for notification of abatement action by letter or other means after having been contacted several times;

5) Whenever the Assistant Commissioner/Authorized Representative believes that particular circumstances (e.g., the number and/or the type of violations, past history of the employer, complex engineering controls, etc.) indicate the need for a follow-up.

NOTE: In most cases involving serious violations in fixed-site establishments, follow-ups shall be scheduled when abatement has not been satisfactorily confirmed.

6) For Severe Violator Enforcement Program (SVEP)cases, in accordance with MOSH Instruction 11-3 - Enforcement Policies and Procedures for MOSH's Severe Violator Enforcement Program (SVEP). See: http://www.dllr.state.md.us/labor/instructions/11-3.shtml

iii. Exceptions to Required Follow-up Inspections. It will not be necessary to conduct a follow-up inspection if any of the following applies:

1) Abatement Documented During Inspections. A follow-up inspection will not be necessary where the CO/IH has observed and properly documented the correction of the cited condition during the inspection.

2) MOSH Supervisor Determination. The MOSH Supervisor may determine that a follow-up inspection is not required. Justification for not conducting follow-up inspections may include basic knowledge concerning work activity at the inspection site (i.e., work on a construction site has been completed) and is properly documented in the case file.

3) Administrative Closing of Case File. Where a follow-up inspection has not been conducted within one year of the final correction date, the case file may be administratively closed. All administratively closed case files shall contain employer verification of abatement/documentation and/or documentation as to the reasons why a required follow-up inspection was not conducted.

4) Multiple Abatement Dates. If a follow-up inspection is to be conducted where an employer has been cited for a number of violations with varying abatement dates, the follow-up inspection normally shall not be scheduled until after a majority of the abatement dates set forth for the more serious violations in the citation(s) have passed. If satisfactory corrective action has been taken by the employer, additional follow-up activity normally shall not be scheduled unless the MOSH Supervisor believes that complex engineering controls or other special factors involved in the case warrant such activity.

iv. Contested Cases. The scheduling of follow-up inspections will be affected in various ways depending on the status of the Notice of Contest.

1) Notice of Contest Not Filed. Follow-up inspections may be conducted during the 15-day notice of contest period provided the date set for abatement has passed and the employer has not actually filed such a notice. Normally, however, only those conditions considered high gravity serious shall subject an employer to being scheduled for follow-up during the contest period. If such a follow-up inspection reveals a failure to abate, a Notification of Failure to Correct Alleged Violation (MDOSH-2B) shall be issued immediately without regard to the contest period of the initial citation.

2) Notice of Contest Filed. When a citation is currently under contest, a follow-up inspection shall not be conducted regarding the contested items.

a) If the employer contests the proposed penalty but not the underlying citation, a follow-up inspection normally shall not be conducted unless the violations are considered high gravity serious and the Assistant Commissioner/Authorized Representative decides that a follow-up is necessary.

b) If a follow-up inspection is conducted at establishments involved in review proceedings, the CO/IH shall explain in the opening conference that the inspection will not involve matters which are pending.

3) Final Order. When the notice of contest is withdrawn, or the alleged violations become a final order of the Commissioner, the abatement time set forth in the citation shall begin to run. A follow-up inspection may be scheduled as appropriate after the final order has been received.

4) Monitoring Inspections. Monitoring inspections normally are required to ensure that hazards are being corrected and employees are being protected, whenever a long period of time is needed for an establishment to come into compliance. Such inspections may be scheduled, among other reasons, as a result of a petition for modification of abatement date (PMA), on serious, willful and repeated violations and to monitor engineering progress of employers or to ensure that terms of a permanent variance are being carried out. These inspections will be scheduled by and at the discretion of the Assistant Commissioner/Authorized Representative.

2. Programmed Inspections. A programmed inspection generally is a comprehensive inspection of the establishment but may be limited as necessary in view of resource availability and other enforcement priorities. (Low-hazard areas, such as office space, may be excluded from inspection without affecting the comprehensiveness of the inspection.)

a. Policy. It is MOSH policy that inspections conducted as programmed inspections be primarily in, but not limited to, the "high hazard" sectors of employment.

i. In the area of safety, the agency considers a "high hazard" or "high rate" industry to be one with a previous history of serious MOSH violations or occupations with known or potential safety hazards.

ii. In the area of health, the agency considers a "high hazard" or "high rate" industry to be one with a previous history of MOSH health hazards or one in which any toxic substance is on site, or occupations with known or potential exposures or risks which may result in diminished health capacity.

iii. For the purpose of scheduling programmed inspections, construction is considered to be a category of high hazard employment.

iv. Other specific industries, as delineated by national or local special emphasis programs.

v. MOSH will annually schedule a number of low hazard establishments for inspection to ensure that all Maryland workers, regardless of SIC code, are covered by MOSH inspections.

vi. MOSH annually randomly schedules 7% - 10% of its inspections in the high hazard Public Sector.

b. General. Both programmed safety inspections and programmed health inspections are scheduled based upon a multiple-step process. The inspection scheduling methodology shall be based on current MOSH Instructions. 

c. Guidelines and Procedures. Programmed inspections shall be conducted jointly by both safety and health personnel whenever resources are available and it is likely, based on experience in inspecting similar workplaces, that both safety hazards and health hazards exist to a significant degree. If an inspection is begun as safety only or as health only but the CO/IH determines during the course of the inspection that it should be expanded, the CO/IH shall contact the MOSH Supervisor. A decision will then be made on the basis of the information available whether the inspection should be expanded and, if so, to what extent. The decision may also be made, based on resource availability, to handle the information as a CO/IH referral for inspection at a later time. 

d. Exemptions and Limitations. Congressional exemptions and limitations, resource availability and other priorities may apply to compliance programming of inspections.

3. Special Emphasis Programs. Special Emphasis Programs include National Emphasis Programs, Local Emphasis Programs, Severe Violator Enforcement Program (See MOSH Instruction 11-3) and other emphasis areas determined by the Assistant Commissioner/Authorized Representative. Special Emphasis Programs provide for: (1) programmed inspections in high potential injury or illness rate situations which are not covered by the scheduling systems outlined in the preceding subsections, or (2) if covered are not addressed to the extent considered adequate under the specific circumstances present, or (3) industry sectors which have unique serious hazards which may have public safety and health implications in addition to occupational exposure.

a. Description. The description of, and reasons for, specific National Emphasis Programs and Local Emphasis Programs will be set forth in appropriate instructions or notices as the occasion arises.

i. The description of the particular Special Emphasis Program shall be identified by one or more of the following:

1) Specific industry

2) Trade/craft

3) Substance or hazard

4) Type of workplace operation

5) Type/kind of equipment

6) Other identifying characteristic

ii. The scope of a Special Emphasis Program shall be described and may be limited by geographic boundaries, size of worksite, or similar considerations.

iii. Pilot programs may also be established under Special Emphasis Programs. Such programs may be conducted for the purpose of assessing the actual extent of suspected or potential hazards, determining the feasibility of new or experimental compliance procedures, or for any other legitimate reason.

b. Scheduling Inspections. The following guidelines shall apply in scheduling Special Emphasis Program inspections:

i. Certain Special Emphasis Programs identify the specific worksites and/or industries that will be inspected; therefore, the only action remaining to be taken is the scheduling of inspections.

ii. Other Special Emphasis Programs identify only the subject matter of the program and contemplate that not all worksites within the program will necessarily be inspected.

iii. If no special worksites are identified within the program, the Assistant Commissioner/Authorized Representative shall use available information to compile a worksite list.

c. Temporary Labor Camps. Temporary labor camps have been designated a Special Emphasis Program and are discussed in Chapter XI of this Manual.

Chapter III - General Inspection Procedures - MOSH Field Operations Manual - Maryland Occupational Safety and Health (MOSH)

A. CO/IH's Responsibilities.

1. The primary responsibility of the Maryland Occupational Safety and Health Compliance Officer/Industrial Hygienist (CO/IH) is to carry out the mandate given to the Commissioner of Labor and Industry, namely, "to ensure, to the extent practicable, that each working man and woman in the State has working conditions that are safe and healthful...." To accomplish this mandate, the Division of Labor and Industry employs a wide variety of programs and initiatives, one of which is enforcement of standards through the conduct of effective inspections to determine whether employers are:

a. Furnishing places of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to their employees, and

b. Complying with safety and health standards, regulations and laws promulgated under and within the MOSH Act (the Act). 

2. The conduct of effective inspections requires identification, professional evaluation and accurate reporting of safety and health conditions and practices. Inspections may vary considerably in scope and detail, depending upon the circumstances in each case.

B. Preparation.

1. General Planning. It is important that the CO/IH spend an appropriate amount of time in professional activity to ensure proper preparation for an inspection.

a. CO/IHs shall plan individual work schedules in advance in coordination with their MOSH Supervisor, reflecting the priorities of the agency and considering existing directives.

b. MOSH Supervisors shall ensure that CO/IHs carefully review pertinent information and data available at the Regional Office. These may include inspection files, other establishment files and reference materials. When CO/IHs need additional information concerning the type of industry to be inspected, the MOSH Supervisor shall be consulted.

c. During review of previous inspection case files, CO/IHs shall note those citations that were issued and their abatement status as documented in the case file, especially those high gravity serious and willful.

2. Preinspection Planning. Due to the wide variety of industries and associated hazards likely to be encountered, preinspection preparation is essential to the conduct of a quality inspection. The CO/IH together with the MOSH Supervisor, if appropriate, shall carefully review:

a. All pertinent information concerning the history of an establishment and appropriate reference sources to become knowledgeable in the potential hazards and industrial processes that may be encountered and shall identify the personal protective equipment necessary for protection against these anticipated hazards.

b. Appropriate standards and sampling methods and, based on experience and information on file concerning the establishment, shall select the instruments and equipment that will be needed for the inspection and prepare them according to the standard methods of sampling and calibration.

3. Inspection Materials and Equipment. The CO/IH shall have all report forms available in sufficient quantity to conduct the inspection, all assigned personal protective equipment available for use and in serviceable condition, and appropriate handouts, if available.

a. If, based on the preinspection review or upon facts discovered at the worksite, a need for unassigned personal protective equipment is identified, the MOSH Supervisor shall ensure that any required equipment is provided. Prior to the inspection, it is essential that the MOSH Supervisor ensure that the CO/IH has been trained in the uses and limitations of such equipment and signify such on the equipment checklist. If the necessary equipment is not available at the regional level, the MOSH Supervisor shall contact the Assistant Commissioner/Authorized Representative to obtain the equipment.

b. A CO/IH shall always wear either a hat or hardhat, jacket or other article as appropriate which identifies him or her as a MOSH CO/IH.

c. A CO/IH shall wear all prescribed personal protective equipment which employees at the inspection site are required to wear, or as potential hazards might dictate.

d. Inspections involving the use of negative pressure respirators shall not be assigned without the CO/IH having had an adequate quantitative fit test within the last year, and medical evaluation in accordance with 29 CFR 1910.134. Since respirators with tight-fitting facepieces require the skin to be clean shaven at the points where sealing occurs, CO/IHs assigned to conduct inspections which involve the use of such respirators shall not have interfering facial hair.

e. If there is a need for special or additional inspection equipment, the MOSH Supervisor shall be consulted to ensure that training in the use and limitation of such equipment has been accomplished prior to the inspection.

f. If after the inspection commences, the CO/IH determines the need for special or additional inspection equipment, the MOSH Supervisor shall be immediately consulted. The MOSH Supervisor shall ensure that a review or recheck in the use of all equipment is given to the CO/IH at least once a year. This can be accomplished during on-the-job training sessions or evaluations conducted by the MOSH Supervisor.

4. Expert Assistance. The MOSH Supervisor shall arrange through the Assistant Commissioner/Authorized Representative for a specialist from within MOSH to assist in an inspection or investigation when the need for such expertise is identified. If MOSH specialists are not available, the Assistant Commissioner/Authorized Representative shall arrange for the procurement of the services of qualified individuals/consultants.

a. Expert assistance may be necessary during inspections for evaluation of engineering or administrative controls involving, but not limited to, noise, air contaminants, complicated machine guarding and construction.

b. MOSH specialists may accompany the CO/IH or perform their tasks separately. Outside qualified individuals/consultants must be accompanied by a CO/IH. MOSH specialists and outside qualified individuals/consultants shall be briefed on the purpose of the inspection and personal protective equipment to be utilized.

c. All data, conclusions and recommendations from the assigned specialists shall be made part of the inspection report, including information on any resultant actions.

5. Safety and Health Rules of the Employer. CO/IHs shall comply with all safety and health rules and practices at the establishment and wear or use the safety clothing or protective equipment required by MOSH standards or by the employer for the protection of employees. 

6. Immunization and Other Special Entrance Requirements. Many pharmaceutical firms, bio-tech companies, medical research laboratories and hospitals have areas which have special entrance requirements. These requirements may include proof of up-to-date immunization and the use of respirators, special clothing or other protective devices or equipment.

a. The CO/IH will not enter any area where special entrance restrictions apply until the required precautions have been taken. It shall be ascertained prior to inspection, if possible, if an establishment has areas with immunization or other special entrance requirements. If the MOSH Supervisor and CO/IH cannot make a determination, the Assistant Commissioner/Authorized Representative or MOSH Supervisor may telephone the establishment using the following procedures. Such communications will NOT be considered advance notice. (See Section "C" of this chapter if advance notice is to be given.)

i. Telephone as far in advance of the proposed inspection date as possible so the employer cannot determine a time relationship between the communication and a possible future inspection.

ii. Identify themselves as a Department of Labor, Licensing and Regulation, MOSH official.

iii. State the purpose of the inquiry and advise the management official of potential future inspection. DO NOT GIVE A SPECIFIC DATE.

iv. Determine the type of immunization(s) and/or special precautions required and the building or area which has restricted access.

b. If immunization is required, the MOSH Supervisor shall advise the Assistant Commissioner/Authorized Representative to ensure that the inspecting CO/IH has the proper immunization and that any required incubation or waiting period is met prior to the inspection. Those immunizations necessary to complete inspections will be provided by the agency.

7. Personal Security Clearance. Some establishments have areas which contain material or processes which are classified by the U. S. Government in the interest of national security. Whenever an inspection is anticipated which may require personal security clearance, the MOSH Supervisor shall refer the matter to the Assistant Commissioner/Authorized Representative.

a. Clearance Procedures. Security clearances, such as those required by the Department of Defense (DOD) or the Energy Research and Development Administration (ERDA) may be required both at civilian establishments with government contracts requiring security areas and at government installations that have civilian contractor operations.

b. Coordination. The Assistant Commissioner/Authorized Representative shall ensure that establishments requiring personal security clearances are referred to Federal OSHA.

C. Advance Notice of Inspections.

1. Policy. Section 5-805 of the Act contains a general prohibition against the giving of advance notice of inspections, except as authorized by the Commissioner or an authorized representative of the Commissioner.

a. The Act regulates many conditions which are subject to speedy alteration and disguise by employers. To forestall such changes in worksite conditions, the Act prohibits unauthorized advance notice and authorizes MOSH to enter worksites "without delay" (Section 5-208) in order to preserve the element of surprise.

b. There may be occasions when advance notice is necessary to conduct an effective investigation within the framework of the Act. These occasions are narrow exceptions to the statutory prohibition against advance notice. The Assistant Commissioner/Authorized Representative shall be advised formally of all requests to allow advance notice of an inspection or investigation.

c. Advance notice of inspections may be given only in the following situations:

i. In cases of apparent imminent danger to enable the employer to correct the danger as quickly as possible;

ii. When the inspection can most effectively be conducted after regular business hours or when special preparations are necessary;

iii. To ensure the presence of employer and employee representatives or the appropriate personnel who, as determined by the Assistant Commissioner/Authorized Representative, are needed to aid in the inspection; and

iv. When the Assistant Commissioner/Authorized Representative determines that giving advance notice would enhance the probability of an effective and thorough inspection (e.g., in complex fatality investigations).

d. Advance notice exists whenever anyone sets up a specific date or time with the employer for the CO/IH to begin the inspection, or to continue an inspection that was interrupted or delayed more than 5 working days. It does not include nonspecific indications of potential future inspections.

e. Although advance notice normally does not exist after the CO/IH has arrived at the worksite, presented credentials and announced the inspection, many causes can serve to delay or interrupt the continued conduct of the inspection. For example, the employer representative on site may request a delay of entry pending the return of the president or some other higher ranking official, or sampling may have to be delayed for some reason after completion of the initial walk around. This might be the case when processes are not running at the initial entry time and require physical observation or sampling.

i. Such delays shall be as short as possible. If an employer's (or an employee representative's) request for delay appears reasonable, the CO/IH may delay or interrupt the inspection for up to an hour. The MOSH Supervisor shall be contacted if the delay lasts or is anticipated to last longer than one hour.

ii. The MOSH Supervisor shall decide whether the circumstances justify a delay of more than one hour and, if so, for how long. If the delay appears reasonable, the inspection may be delayed or interrupted for the time judged necessary, but in no case for longer than 5 working days. The Assistant Commissioner/Authorized Representative shall be advised and consulted concerning all inspection and investigation delays lasting longer than 24 hours.

iii. In cases where screening sampling, bulk or wipe sampling is performed and laboratory analysis of the samples is required, there shall be no more than 5 working days between receipt of screening results and the onset of full-shift sampling. In cases where this is not practical (i.e., process to be sampled is not running) the MOSH Supervisor shall be advised and documentation of the delay and apparent reason shall be placed in narrative form for the case file. The Assistant Commissioner/Authorized Representative shall immediately receive a copy of the narrative.

iv. The inspection shall be resumed as soon as reasonably possible. Delays or interruptions of less than 5 working days shall not require implementation of advance notice procedures.

f. If the employer or the employee representative requests a delay which the MOSH Supervisor believes is unreasonable or without sufficient justification (e.g., too long, not in good faith) or if the delay requested is for more than 5 working days, the CO/IH shall inform the requester that agency policy does not allow for such a delay. If the employer representative continues to insist on the delay, the situation shall be treated as a refusal of entry and shall be handled accordingly.

g. In unusual circumstances, the Assistant Commissioner/Authorized Representative may decide that a delay of more than 5 working days is necessary (e.g., the process to be sampled may not be activated within that time or compliance personnel may not be available because of higher priority demands). Any situation involving a delay of more than 5 working days, whatever the justification, shall be handled as advance notice and must be approved by the Assistant Commissioner/Authorized Representative.

2. Procedures. Advance notice shall only be given by the MOSH Supervisor or CO/IH when written authorization from the Assistant Commissioner/Authorized Representative has been received. The Assistant Commissioner/Authorized Representative shall be notified as soon as possible and kept apprised of all details.

a. If it is decided to provide advance notice, the MOSH Supervisor or Assistant Commissioner/Authorized Representative shall do so by telephone or other appropriate contact. This contact normally shall be made not more than 24 hours prior to the inspection. Documentation of the conditions requiring advance notice and the procedures followed shall be included in the case file.

b. During the telephone contact with the employer, the MOSH Supervisor or Assistant Commissioner/Authorized Representative shall identify himself/herself, explain the purpose of the inspection, state when the inspection is expected to be conducted, ascertain the employer's normal business hours and whether special protective equipment or precautions are required. If security clearances or immunizations are necessary the appropriate sections of this chapter shall be followed.

c. If advance notice is to be given at a construction or other multiple employer site, the MOSH Supervisor or Assistant Commissioner/Authorized Representative shall contact the general contractor. If there are two or more general contractors, each shall be contacted. The general contractor shall be informed of the responsibility of advising all subcontractors on the site of the impending inspections.

d. If a general contractor is contacted, it shall be pointed out that it is that contractor's responsibility to instruct each subcontractor of the obligation to notify employee representatives promptly of the inspection.

e. An important purpose of advance notice is to make arrangements for the presence of employer and employee representatives to aid in the conduct of an effective and thorough inspection. A responsible management official shall be requested to assist in the inspection. The MOSH Supervisor or Assistant Commissioner/Authorized Representative shall advise the employer that Section 5-208(b) of the Act requires that an employee representative be given an opportunity to participate in the inspection

f. The MOSH Supervisor or Assistant Commissioner/Authorized Representative shall determine if employees at the establishment are represented by a labor organization(s) and if there is a safety committee with employee representatives. The employer shall be advised that, when advance notice is given, it is the employer's responsibility to notify the authorized employee representative(s) promptly of the inspection. The MOSH Supervisor or Assistant Commissioner/Authorized Representative shall provide any other information necessary.

g. The advance notice requirement with respect to employees applies only if there is a known representative authorized by employees, such as a labor organization or a safety committee with employee representatives. The employer should clearly understand that the employer is not permitted to designate an employee representative. If there is no authorized employee representative or if the representation cannot be determined with reasonable certainty, the CO/IH shall consult with a reasonable number of employees during the inspection concerning the impact or possible adverse effects of the advance notice.

D. Conduct of the Inspection.

1. Entry of the Workplace. The CO/IH shall be particularly careful to make a good first impression upon entry into an establishment to be inspected. The CO/IH must display an attitude which will convey a professional, balanced and thorough concern for safety and health.

a. Time of Inspection. Inspections shall be made during regular working hours of the establishment except when special circumstances indicate otherwise. The MOSH Supervisor shall approve entry for other than daytime working hours.

b. Severe Weather Conditions.

i. If severe weather conditions encountered during an inspection cause workplace activities to shut down, the inspection shall be continued at a later time as soon as weather permits.

ii. If work continues during adverse weather conditions but the CO/IH decides that the weather interferes with the effectiveness of the inspection, he/she shall contact the MOSH Supervisor for guidance concerning the termination of the inspection.

iii. If work continues and the CO/IH decides to continue the inspection in spite of bad weather, hazardous conditions created by the weather shall be noted since they may be the subject of later citation(s).

c. Presenting Credentials. At the beginning of the inspection the CO/IH shall attempt to locate the owner, operator or agent in charge at the workplace and tactfully present credentials. On construction sites this will most often be the representative of the general contractor. In the following circumstances, the CO/IH shall:

i. When the person in charge is not present at the beginning of the inspection, identify the top management official. This person may be the foreman, leadman, gang boss or senior member of the crew.

ii. When neither the person in charge nor a management official is present, contact the employer by telephone and request the presence of the owner, operator or management official. The inspection should not be delayed unreasonably to await the arrival of the employer representative. This delay shall not normally exceed one hour.

iii. If the person in charge at the workplace cannot be determined by (1) and (2) above, record the extent of the inquiry in the case file and proceed with the physical inspection. If the person in charge arrives during the inspection, an abbreviated opening conference shall be held, and the person shall be informed of the status of the inspection and included in the continued walk around.

iv. When an inspection is scheduled for a known government facility, the CO/IH shall contact the person in charge of such facility to inform him or her of MOSH's presence on the facility for purposes of inspecting a contractor or employer on site and to invite appropriate participation. At Department of Defense sites (i.e., military bases) inspections of private contractors will normally be deferred to Federal OSHA.

v. On multi-employer sites the superintendent, project manager or other representative of the general or prime contractor shall be asked to identify the subcontractors or other contractors on the site together with the names of the individuals in charge of their operations.

1) The CO/IH shall then request that these individuals be contacted and asked to assemble in the general contractor's office or other suitable location, together with their employee representatives, if any. If the opening conference will cause unreasonable disruption of the work process, the opening conference can be conducted as the inspection progresses.

2) The inspection shall not be postponed or unreasonably delayed because of the unavailability of one or more representatives.

3) If a federal, state or local government contracting agency representative is on-site, the general contractor shall be asked to contact the representative, advising him or her of the inspection and extending an invitation to attend the opening conference and to participate in the inspection. (NOTE: State and local government agencies shall be included among the employers being inspected.)

d. Refusal to Permit Inspection. Section 5-208(a) of the Act provides that CO/IHs may enter without delay and at reasonable times any establishment covered under the Act for the purpose of conducting an inspection. An employer may insist, however, that a CO/IH obtain a warrant prior to entering an establishment and may refuse entry without such warrant.

NOTE: If the employer is physically situated on federal, state or local government property a search warrant may not be necessary (e.g., state highway construction projects, general services building projects). Instead, a representative of the controlling authority shall be informed of the employer's refusal and asked to take appropriate action to obtain cooperation and site access.

i. Refusal of Entry or Inspection. The CO/IH shall not engage in argument concerning refusal. When the employer refuses to permit entry upon presenting proper credentials or allows entry but then refuses to permit or hinders the inspection in some way, a tactful attempt shall be made to obtain as much information as possible about the establishment. The preceding section outlines the information the CO/IH shall attempt to obtain.

1) If the employer refuses to allow an inspection of the establishment to proceed, the CO/IH shall leave the premises and immediately report the refusal to the MOSH Supervisor. The MOSH Supervisor shall attempt to resolve the matter by telephone and then shall notify the Assistant Commissioner/Authorized Representative.

2) If the employer raises no objection to inspection of certain portions of the workplace but objects to inspection of other portions, the CO/IH shall inform the MOSH Supervisor of the partial refusal. Normally, the CO/IH shall continue the inspection, confining it only to those certain portions to which the employer has raised no objections.

3) In either case the CO/IH shall advise the employer that the refusal will be reported to the MOSH Supervisor and that the agency may choose to take further action, which may include obtaining legal process.

ii. Questionable Refusal. When permission to enter or inspect is not clearly given, the CO/IH shall make an effort to clarify the employer's intent.

1) If there is any doubt as to whether the employer intends to permit an inspection, the CO/IH shall not proceed. When the employer's intent is clarified, the CO/IH shall either conduct the inspection or proceed as outlined in the preceding Refusal of Entry or Inspection, section.

2) When the employer hesitates or leaves for a period of time so that permission is not clearly given within one hour of initial entry, the CO/IH shall contact the MOSH Supervisor. The CO/IH may answer reasonable questions presented by the employer (e.g., the scope of the inspection, purpose, anticipated length, etc.) but shall avoid giving any impression of unyielding insistence or intimidation concerning the right to inspect.

3) If it becomes clear that the employer is refusing permission to enter, the CO/IH shall leave the establishment and contact the MOSH Supervisor.

iii. Employer Interference. Where entry has been allowed but the employer interferes with or limits any important aspect of the inspection, the CO/IH shall immediately contact the MOSH Supervisor for instructions on whether or not to consider this action as a refusal. Examples of interference are refusals to permit:

1) the walk around,

2) the examination of records essential to the inspection,

3) the taking of photographs or videotapes,

4) the inspection of a particular part of the premises,

5) private employee interviews, and

6) attachment of sampling devices.

iv. Administrative Subpoena. Whenever there is a reasonable need for records, documents, testimony and/or other supporting evidence necessary for completing an inspection scheduled in accordance with any current and approved inspection scheduling system or an investigation of any matter properly falling within the statutory authority of the agency, the Commissioner may issue an administrative subpoena.

1) If a person refuses to provide requested information or evidence, the CO/IH shall explain the reason for the request. If he/she continues to refuse to produce the information or evidence requested, the CO/IH shall inform the person that the refusal will be reported to the MOSH Supervisor and that the agency may take further legal action to compel cooperation or production of evidence.

2) If an administrative subpoena appears to be indicated, the Assistant Commissioner/Authorized Representative shall prepare a subpoena for the Commissioner's signature. The draft subpoena, together with written supportive documentation, shall be forwarded as soon as practicable to the Commissioner and Counsel to the Commissioner.

3) The Commissioner, with the advice of counsel, shall evaluate the documentation and decide whether to issue a subpoena.

4) If the Commissioner, after consultation with counsel, believes that the subpoena should be issued, he/she shall sign it and forward the signed document to the Assistant Commissioner/Authorized Representative or MOSH Supervisor.

5) The subpoena shall normally be served by personal service. In exceptional circumstances service may be made by certified mail with return receipt requested.

6) The person served may comply with the subpoena by immediately making the information or evidence available to the CO/IH or by making the information or evidence available at the time and place specified in the subpoena.

7) If the person served honors the subpoena, the inspection or other investigation shall proceed as usual.

8) If the person served refuses to honor the subpoena, the MOSH Supervisor shall proceed as usual for cases involving a refusal of entry and shall refer the matter, through the Assistant Commissioner/Authorized Representative, to the Office of the Attorney General.

v. Administrative Search Warrant.

1) Upon receipt of notification of a total or partial refusal of entry, the MOSH Supervisor shall inform the Assistant Commissioner/Authorized Representative of the circumstances by telephone, with a memorandum to follow. The Assistant Commissioner/Authorized Representative shall consult with the Office of the Attorney General as soon as practicable. If it is determined that a warrant will be sought, the Assistant Commissioner/Authorized Representative shall proceed according to guidelines and procedures established for warrant applications.

2) Warrants to conduct unprogrammed inspections are limited in scope. For the sake of uniformity, the warrant sought when employer consent has been withheld shall normally be limited to the specific working conditions or practices forming the basis of the unprogrammed inspection. A broad scope warrant, however, may be sought when the information giving rise to the unprogrammed inspection indicates conditions which are pervasive in nature. A broad scope warrant also may be sought when the establishment is listed in the current safety or health inspection planning guide.

3) If the warrant is to be obtained, the MOSH Supervisor shall transmit verbally or in writing to the Assistant Commissioner/Authorized Representative, who shall forward to the Office of the Attorney General, within 24 hours after the determination is made that a warrant is necessary, the following information:

a) Region, telephone number, and the name of MOSH Supervisor involved.

b) Name of CO/IH attempting inspection and inspection number, if assigned. Identify whether inspection to be conducted included safety items, health items or both.

c) Legal name of establishment and address including city, state and county. Include site location if different from mailing address.

d) Estimated number of employees at inspection site.

e) SIC Code and high hazard ranking for that specific industry within the State.

f) Summary of all facts leading to the refusal of entry or limitation of inspection, including the following:

i) Date and time of entry.

ii) Stage of denial (entry, opening conference, walk around, etc.).

g) Narrative of all actions taken by the CO/IH leading up to, during and after refusal including, as a minimum, the following information:

i) Full name and title of the person to whom CO/IH presented credentials.

ii) Full name and title of person(s) who refused entry.

iii) Reasons stated for the denial by person(s) refusing entry.

iv) Response, if any, by CO/IH to c, above.

v) Name and address of the witnesses to denial of entry.

h) All previous inspection information, including copies of the previous citations.

i) Previous requests for warrants. Attach details, if applicable.

j) As much of the current inspection report as has been completed.

k) If a construction site involving work under contract from any government agency, the name of the agency, the date of the contract, and the type of work involved.

l) Other pertinent information such as description of the workplace; the work process; machinery, tools and materials used; known hazards and injuries associated with the specific manufacturing process or industry.

m) Investigative techniques which will be required during the proposed inspection (e.g., personal sampling, photographs, videotapes, examination of records, access to medical records, etc.).

n) The specific reasons for the selection of this establishment for the inspection including proposed scope of the inspection and rationale:

i) Imminent Danger.

(1) Description of alleged imminent danger situation.

(2) Date received and source of information.

(3) Original allegation and copy of typed report, including basis for reasonable expectation of death or serious physical harm and immediacy of danger.

(4) Whether all current imminent danger processing procedures have been strictly followed.

ii) Fatality/Catastrophe.

(1) Type of accident: fatality, catastrophe.

(2) Method of accident notification: telephone, news media (attach copy of report), employee representative, other.

(3) Number of employees involved: fatalities, injuries, number hospitalized.

iii) Complaint.

(1) Original complaint and copy of typed complaint.

(2) Reasonable grounds for believing that a violation that threatens physical harm or imminent danger exists, including standards that could be violated if the complaint is true and accurate.

(3) Whether all current complaint processing procedures have been followed.

(4) Additional information gathered pertaining to complaint evaluation.

iv) Referral.

(1) Original referral and copy of completed Referral Form, OSHA-90.

(2) Specific description of the hazards observed and the potential injury or illness that may result from the specific hazard.

(3) Specific standards that may be violated.

(4) Number of employees affected by the specific hazard.

(5) Corroborative information or other supporting material to demonstrate potential existence of a hazard and employee exposure, if known.

(6) Whether all current referral processing procedures have been followed.

(7) Additional information gathered pertaining to referral evaluation.

v) Programmed.

(1) Copies of the programmed planning guide showing inspection dates and case numbers of establishments inspected by numerical rankings.

(2) For construction inspections, assignment methodology and classification.

(3) High-hazard safety: general industry, construction.

(4) Targeted health.

(5) Special emphasis program: Special Programs, Local Emphasis Program, Migrant Housing Inspection, etc.

vi) Follow-up.

(1) Date of initial inspection.

(2) Details and reasons follow-up was to be conducted.

(3) Copies of previous citations on the basis of which the follow-up was initiated.

(4) Copies of settlement stipulations and final orders, if appropriate.

(5) Previous history of failure to correct, if any.

vi. Administrative Warrant Process (Compulsory Process). When a court order or warrant is obtained requiring an employer to allow an inspection, the CO/IH is authorized to conduct the inspection in accordance with the provisions of the court order or warrant. All questions from the employer concerning reasonableness of any aspect of an inspection conducted pursuant to compulsory process shall be referred to the MOSH Supervisor, who shall inform the Assistant Commissioner/Authorized Representative.

vii. Action to be Taken Upon Receipt of Compulsory Process. The inspection will normally begin within 24 hours of receipt of compulsory process or of the date authorized by compulsory process for the initiation of the inspection. In addition, any warrant issued will have a required return of service which must be identified at the time of issuance.

1) The CO/IH shall serve a copy of the compulsory process on the employer and make a separate notation as to the time, place, name and job title of the individual served.

2) The compulsory process may have a space for a return of service entry by the CO/IH in which the exact dates of the inspection made pursuant to the compulsory process are to be entered. Upon completion of the inspection, the CO/IH will complete the return of service on the original compulsory process, sign and return it to the issuing judge in accordance with his/her original instructions.

3) If physical resistance or interference by the employer is anticipated, the MOSH Supervisor shall notify the Assistant Commissioner/Authorized Representative, and appropriate action shall be determined.

4) Even where the walk around is limited by a warrant or an employer's consent to specific conditions or practices, a subpoena for records shall be served, if necessary. The records specified in the subpoena shall include (as appropriate) injury and illness records, exposure records, the written hazard communication program, the written lockout-tagout program, and records relevant to the employer's safety and health management program, such as safety and health manuals or minutes from safety meetings.

5) The subpoena may call for immediate production of the records with the exception of documents relevant to the safety and health management program, for which a period of 5 working days normally shall be allowed.

6) In exceptional cases, a second warrant may be sought based on the review of records or on "plain view" observations or other potential violations during a limited scope walk around.

viii. Refused Entry or Interference with a Compulsory Process. When an apparent refusal to permit entry or inspection is encountered upon presenting the compulsory process, the CO/IH shall specifically inquire whether the employer is refusing to comply with the compulsory process.

1) If the employer refuses to comply or if consent is not clearly given (for example, the employer expresses an objection to the inspection), the CO/IH shall not attempt to conduct the inspection but shall leave the premises and contact the MOSH Supervisor concerning further action. The CO/IH shall make notations (including all possible witnesses to the refusal or interference) and fully report all relevant facts.

2) The MOSH Supervisor shall contact the Assistant Commissioner/Authorized Representative and the Office of the Attorney General, either orally or in writing, as appropriate, concerning the refusal to comply or the interference.

3) The Assistant Commissi